The opinion of the court was delivered by: Honorable Thomas L. Ludington
OPINION AND ORDER GRANTING IN PART, DENYING IN PART, AND HOLDING IN ABEYANCE IN PART MIEDZIANOWSKI AND MCGRAW'S MOTION FOR SUMMARY JUDGMENT, GRANTING IN PART, DENYING IN PART, AND HOLDING IN ABEYANCE IN PART THE CITY AND HIBL'S MOTION FOR SUMMARY JUDGMENT, AND DIRECTING SUPPLEMENTAL BRIEFING ON BOTH MOTIONS
Plaintiff Steven Scozzari ("Plaintiff"), on behalf of the estate of his deceased brother, William Scozzari ("Scozzari"), filed a complaint on March 7, 2008, and an amended complaint on June 25, 2009, alleging claims arising out of the shooting death of Scozzari on or about September 18, 2007. The amended complaint alleges the following claims in separately numbered counts against the City of Clare ("the City"), City Manager Ken Hibl ("Hibl"), City Police Chief Dwayne Miedzianowski ("the Chief"), and Officer Jeremy McGraw ("Officer McGraw"): (1) excessive force and deliberate indifference to a serious medical need constitutional violations pursuant to 42 U.S.C. § 1983; (2) municipal liability under § 1983; (3) assault and battery; (4) gross negligence under Mich. Comp. Laws § 691.1407; (5) civil conspiracy to violate Scozzari's civil rights; and (6) discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132.
Now before the Court are the City and Hibl's motion for summary judgment [Dkt. # 68], and the Chief and Officer McGraw's (collectively, "the Officers") motion for summary judgment [Dkt. # 71], filed on November 12 and 13, 2009, respectively. Plaintiff filed a single response [Dkt. # 81] to both motions on December 8, 2009. Replies were filed by the City and Hibl [Dkt. # 86], and the Chief and Officer McGraw [Dkt. # 87] on December 15, 2009.
The Court has reviewed the parties' submissions and finds that oral argument will not aid in the disposition of the motion. Accordingly, it is ORDERED that the motion be decided on the papers submitted. E.D. Mich. LR 7.1(e)(2). For the reasons stated below, the Officers' motion will be granted in part and supplemental briefing directed as to Plaintiff's Fourth Amendment claims pursuant to § 1983, denied as to Plaintiff's deliberate indifference to a serious medical need claims pursuant to § 1983, supplemental briefing directed as to Plaintiff's assault and battery claim, and granted as to Plaintiff's gross negligence and civil conspiracy claims. Additionally, the City and Hibl's motion will be denied as to municipal liability pursuant to § 1983, granted as to Plaintiff's civil conspiracy claims and all of Plaintiff's claims against Hibl, and supplemental briefing directed on Plaintiff's ADA claims.
Under Rule 56(c), a court must review "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," to conclude that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). A fact is "material" if its resolution affects the outcome of the case. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). "Materiality" is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is "genuine" if a "reasonable jury could return a verdict for the nonmoving party." Henson v. Nat'l Aeronautics and Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. Mich. Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 534 (6th Cir. 2002).
The party bringing the summary judgment motion has the initial burden of informing the court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002). The party opposing the motion then may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. The party who bears the burden of proof must present a jury question as to each element of the claim, Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000), rather than raise only "metaphysical doubt as to the material facts." Highland Capital, Inc. v. Franklin Nat'l Bank, 350 F.3d 558, 564 (6th Cir. 2003) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991).
The shooting death of Scozzari by the Chief and Officer McGraw took place in or near the parking lot of the Lone Pine Motel in the City of Clare, Michigan, between eleven o'clock and midnight on September 18, 2007. The Lone Pine Motel consists of several buildings, including several stand-alone cabins and a two-story building with several motel rooms, see Pl. Br. Ex. 2, and provides for overnight stays and extended lodging. The motel is located at 1508 North McEwan Street, on the east side of the street, south of Wilcox Parkway. Just to the north of Wilcox Parkway and the motel property, there is a park and a Veterans of Foreign Wars ("VFW") building.
At the time of his death, Scozzari had lived in cabin seventeen at the Lone Pine Motel for seven to ten years. Cabin seventeen is located in the northwest area of the motel property. To the east of cabin seventeen are at least two other cabins, numbers eighteen and nineteen. Jeff Richardson was a guest who stayed in cabin eighteen, and Jeff Morgan II and his girlfriend, Sheryl Irwin, were guests who stayed in cabin nineteen. The doors to these particular cabins faced south. A short sidewalk led from the door of each cabin to a sidewalk that effectively connected the row of cabins. See Pl. Br. Ex. 38.
A long, rectangular, two-story building with several motel rooms was south of cabins seventeen, eighteen, and nineteen, and essentially perpendicular to that row of cabins. See Pl. Br. Ex. 2. Jason Miller was a guest in motel room five, and the door to his room faced west. Jeff Morgan Sr. and Jacob Morgan were guests in a motel room on the second floor. Also to the south of cabins seventeen, eighteen, and nineteen, further to the east and parallel to the long motel building, was another cabin or row of cabins, consisting of at least cabin twenty. Wanetta Gibbons stayed in cabin twenty and was responsible for cleaning the cabins and motel rooms. The door to cabin twenty faced west.
Plaintiff asserts that fifty-one year old Scozzari was hard of hearing, blind in one eye, had diminished sight out of the other eye, and sometimes used a cane while walking. Scozzari was five feet three inches tall and weighed 113 pounds. Pl. Br. Ex. 4 (autopsy). Plaintiff asserts that Scozzari was a diagnosed schizophrenic on disability and under the care of the Clare County Mental Health Department. Timothy Rynearson, the prior owner of the Lone Pine Motel and the prior police chief, testified that at some point, "Mark" from County Mental Health asked if there was a cabin that Scozzari could stay in. Rynearson Tr. 13, June 26, 2009. Wanetta Gibbons testified that she saw Mark Tucker, a social worker, visit Scozzari, although the last time Gibbons had seen Tucker was probably three years ago. Gibbons Tr. 14-15, Oct. 24, 2008. Gibbons testified that Scozzari was a hermit and had not allowed anyone, not even family, to enter his cabin in years. Gibbons Tr. 18-19, 57, 83. Rynearson testified that Scozzari was a "pack rat." Rynearson Tr. 18. While Scozzari loved to collect knives and hatchets, he had no police record, and Rynearson had never witnessed Scozzari engage in any threatening behavior. Rynearson Tr. 24-25, 57, 59, 61, 99-100. Scozzari would not talk to people, he only "grunted." Rynearson Tr. 25-26. When Rynearson was police chief, everybody in the department knew Scozzari because he walked around a lot, wore winter coats in the summer and his boots unlaced, and was generally disheveled. Rynearson Tr. 54-55, 101.
At about 11:05 p.m. on September 18, 2007, Jason Miller, the guest in motel room five, called Clare County 911 to report what sounded like shots fired from the direction of the park just north of the motel. Pl. Br. Ex. 1 (Clare Police Dep't incident report). The Chief was dispatched to investigate the incident and arrived at a parking lot near North McEwan Street and Wilcox Parkway within minutes. Id.; Pl. Br. Ex. 13 (the Chief and Officer McGraw's combined incident report). The Chief saw a flashlight coming from around east of the VFW building between ten and fifty feet away. Chief Tr. 65, June 30, 2009; Pl. Br. Ex. 13. While the Chief did not have his own flashlight at that time, he was able to see Scozzari. Chief Tr. 67-68. For safety purposes, the Chief asked Scozzari to drop what appeared to be a brown colored stick carried on Scozzari's left shoulder, although the Chief could not identify what the "brown stick" was at the time. Chief Tr. 67-68; Pl. Br. Ex. 13. The Chief asked Scozzari to come over so that the two men could hear each other. Chief Tr. 67.
Scozzari responded to the Chief's requests to drop the stick and to come over by saying, "fuck you, boy" and continuing to walk. Chief Tr. 69; Pl. Br. Ex. 13. The Chief testified that Scozzari's response did not anger him. Chief Tr. 70. However, the Chief also testified that "it became alarming to me knowing there was a misdemeanor violation already in the park after hours, was he the person with the gun and that's why he wouldn't talk to me and that's why he's trying to just keep walking, and was the gun in that backpack or on him somewhere else is that why he didn't want to talk to me." Chief Tr. 70-71.
The Chief followed Scozzari at a distance of about fifteen feet, and Scozzari was looking back at the Chief as they were walking. Chief Tr. 74; Pl. Br. Ex. 13. The Chief told Scozzari to stop and to put the stick down, and Scozzari again responded by saying "fuck you" and did not stop walking. Chief Tr. 74; Pl. Br. Ex. 13. The two men entered the parking lot of the motel near cabin seventeen and the Chief lost sight of Scozzari for a minute as he went around the corner of a cabin. Chief Tr. 75. The Chief caught up to within five to ten feet of Scozzari and Scozzari appeared to pull the stick back in his left hand. Chief Tr. 74-76; Pl. Br. Ex. 13. The Chief backed up and yelled at Scozzari to drop the stick. Chief Tr. 77; Pl. Br. Ex. 13. Scozzari brought the stick down as he reached towards his waist with his right hand and walked towards the Chief. Chief Tr. 77-78; Pl. Br. Ex. 13. The Chief attempted to pepper spray Scozzari in the face and then ran behind a truck. Chief Tr. 77-78; Pl. Br. Ex. 13.*fn1 Scozzari kept walking towards the Chief and continued to pull an item out of his waistband, which the Chief eventually recognized as a knife. Chief Tr. 78; Pl. Br. Ex. 13.*fn2 The Chief drew his service weapon, pointed it at Scozzari, and yelled at Scozzari to put the knife back. Chief Tr. 80; Pl. Br. Ex. 13. Scozzari turned around, walked into cabin seventeen, and closed the cabin door. Chief Tr. 80; Pl. Br. Ex. 13. The Chief believed that Scozzari had assaulted him when he cocked his arm back with the stick and reached for a knife. Chief Tr. 80-82.
Meanwhile, at 11:07 p.m., Officer McGraw was dispatched and arrived on the scene at 11:14 p.m., a couple of minutes after Scozzari entered cabin seventeen. Pl. Br. Ex. 1; Chief Tr. 82; Pl. Br. Ex. 13. As Officer McGraw was en route, the Chief, who was becoming increasingly agitated, called Officer McGraw two to four times on his cell phone to find out Officer McGraw's location. McGraw Tr. 120; Pl. Br. Ex. 13. The Chief met up with Officer McGraw on the west side of cabin seventeen, briefed Officer McGraw, and the two men walked around to investigate the area. Chief Tr. 85-86; McGraw Tr. 123; Pl. Br. Ex. 13. McGraw testified that the Chief informed him that "he had just dealt with a male that had pulled out a possible cane and threatened him... he... took cover behind a vehicle to protect himself and the male walked away and entered cabin 17. The [C]hief stated he believed that the male possibly had some mental issues." McGraw Tr. 145; Pl. Br. Ex. 13. Officer McGraw acknowledged that he did not record in his report anything about the Chief telling him that he had drawn his gun on Scozzari. McGraw Tr. 147-49.
After he reported the "shots fired," Jason Miller, the guest in motel room five, was standing in the motel parking lot when he heard voices to the north, beyond the cabins, saying "get away kid" and "knife," along with other unintelligible words. Miller Tr. 18-23, Dec. 3, 2008. After that, Miller saw the Chief running south toward Miller from the north end of the motel property, then circling around the parking lot and heading back to the north. Miller Tr. 25-28. Then Miller saw Officer McGraw arrive and meet up with the Chief to the west of cabin seventeen, the two Officers spoke for a minute and began to walk behind and beside the cabins. Miller Tr. 29-31. At a point when Miller saw the Officers again, Miller was about thirty feet away from cabin seventeen, and Officer McGraw came over to Miller and asked him whether he had seen anybody running. Miller Tr. 30. Miller responded that he had not, and when the Officers were walking away, Miller heard the Chief say, "he's going to jail tonight" and "something that sounded... like 'mental problems' or 'mental issues.' " Miller Tr. 33.
Officer McGraw testified that he had received "general," but never "specific" directives on how police officers are supposed to handle suspects with believed mental issues. McGraw Tr. 150. City Manager Hibl testified he had never distributed any policies, directives, training sessions, or other materials relating to the ADA to the City's police department. Hibl Tr. 12-13, Aug. 5, 2009.
Next, the Chief and Officer McGraw went to cabin seventeen to arrest Scozzari, based on the encounter between the Chief and Scozzari. Chief Tr. 89; Pl. Br. Ex. 13. The Chief believed that he had the right to arrest Scozzari based on the earlier encounter and the fact that the Officers did not know whether Scozzari "belonged in that cabin." Chief Tr. 89-90. The Chief acknowledged that it was not a "hot pursuit" situation, but thought there may have been probable cause or exigent circumstances if he "felt someone else in there might be in jeopardy." Chief Tr. 93-94.
From the right side of the door to cabin seventeen, and at the Chief's direction, Officer McGraw struck the cabin door three to five times, while his taser was in one hand, stating, "police, open the door." McGraw Tr. 234-35; Pl. Br. Ex. 13. The Chief was standing to the left of the door, a bit further away from the door, to the southwest. McGraw Tr. 231; Pl. Br. Ex. 13. The door handle was on the left side of the door and the door hinged on the right side. Pl. Br. Ex. 22. Scozzari opened the door inward and was "almost face to face" with Officer McGraw. McGraw Tr. 241.
Officer McGraw saw that Scozzari had a twelve-inch "military style" knife in his left hand, and a fifteen-inch hatchet in his right hand. Pl. Br. Ex. 13. Both weapons were in sheathes, but Officer McGraw observed Scozzari attempting to take the sheath off the military style knife. Pl. Br. Ex. 13. The Chief was only aware that Scozzari was fumbling with something in his hands. Pl. Br. Ex. 13. The Officers yelled for Scozzari to drop what was in his hands. Pl. Br. Ex. 13. Both Officers saw that Scozzari did not comply and instead took a step towards Officer McGraw. Pl. Br. Ex. 13. Officer McGraw deployed his taser, which neither Officer believed took effect because Scozzari turned and entered cabin seventeen. Pl. Br. Ex. 13.
The Chief heard Officer McGraw yell that Scozzari was "going for something" in the cabin, and Officer McGraw attempted to kick open the door, which had not completely latched shut. Pl. Br. Ex. 13. It is not clear whether Officer McGraw successfully kicked open the door or Scozzari opened it. Pl. Br. Ex. 13. The Chief reported Officer McGraw kicked open the door and then the Chief saw through the cabin door window that Scozzari had his back to Officer McGraw and was fumbling with something. Pl. Br. Ex. 13. The Chief then kicked the door "to stop Scozzari from grabbing any weapons." Pl. Br. Ex. 13. In some contrast, Officer McGraw reported that Scozzari opened the door after Officer McGraw could not kick it open. Pl. Br. Ex. 13.
Both Officers saw that Scozzari again had knives in his hands, raised over his head. Pl. Br. Ex. 13. Officer McGraw saw Scozzari trying to take the sheath off the hatchet. Pl. Br. Ex. 13. The Officers yelled for Scozzari to drop the weapons, but Scozzari refused and told the Officers to drop their weapons. Pl. Br. Ex. 13. The Chief backed up to the southwest and Officer McGraw backed up to the southeast. Pl. Br. Ex. 13. The two Officers ended up about ten feet away from each other. Chief Tr. 103-05.
Scozzari began to exit the cabin and stepped onto the sidewalk in front of the cabin. Chief Tr. 103-04. Officer McGraw thought Scozzari was going to attack him, so Officer McGraw quickly stepped backwards. Pl. Br. Ex. 13. Officer McGraw fell backwards, tripping on a wooden barrier about twelve to eighteen inches high between the sidewalk and the parking lot, see Pl. Br. Ex. 36, 38, and Scozzari continued to approach him with the hatchet unsheathed. Pl. Br. Ex. 13. Officer McGraw threw his taser to the side after he fumbled reloading it. Pl. Br. Ex. 13.
There is some discrepancy between Officer McGraw and the Chief's report, described in the preceding paragraph, and Officer McGraw's testimony. Officer McGraw testified that as he fell, he shot his taser at Scozzari, who was about five to six feet away. McGraw Tr. 243. Then, Scozzari stepped back into the cabin and closed the door. McGraw Tr. 244. Within two seconds, Scozzari came back out of the cabin with "like three weapons in his hands," while Officer McGraw was still on his side, trying to reload the taser. McGraw Tr. 244; Chief Tr. 103. Scozzari advanced towards Officer McGraw, who threw his taser to the side after he could not reload it, and was scurrying backwards. McGraw Tr. 244-45.
Nonetheless, at some point while Officer McGraw was on the ground, Scozzari stepped over the barrier, putting himself about six feet from the cabin door and three to five feet from Officer McGraw. Id. 175, 245-46; Chief Tr. 105; Pl. Br. Ex. 13. Officer McGraw was afraid for his life. McGraw Tr. 246-47. The Chief started shooting at Scozzari, who was about ten feet from the Chief and still advancing towards Officer McGraw. McGraw Tr. 246-47; Chief Tr. 107; Pl. Br. Ex. 13. Officer McGraw tried to get up and scoot backwards. McGraw Tr. 247-49. After the Chief started shooting, Scozzari turned towards the Chief, Officer McGraw started to shoot at Scozzari, Scozzari then turned towards the cabin, took two or three steps, and fell face down over the wooden barrier towards the cabin. McGraw Tr. 175-176, 179, 181, 247-51; Pl. Br. Ex. 13.
Officer McGraw only recalled shooting two or three times, from his chest as he was attempting to stand up, but he later learned he had shot eight times. Id. 179, 247-49; Pl. Br. Ex. 13. The autopsy report and Michigan State Police laboratory report suggest that Officer McGraw fired his gun seven times and hit Scozzari five times, while the Chief fired his gun four times and did not hit Scozzari. Pl. Br. Exs. 4, 20.
At the point when the Chief and Officer McGraw approached the door to cabin seventeen, Jason Miller was still watching the events unfold from about forty feet away. Miller Tr. 39. Before the door to cabin seventeen opened, Miller heard a voice, or voices, shouting "at the individual who was inside" to "drop the knife" at least a dozen times. Miller Tr. 34-40. Around the last time he heard "drop the knife," the Chief started backing up about ten more feet from the cabin towards the southwest. Miller Tr. 40-41. It was after that when Miller heard the door to the cabin begin to squeak open. Miller 42. Miller testified that although he was focused on the cabin, he could not see the individual inside the cabin, and had lost sight of Officer McGraw. Miller Tr. 42. As the door opened, Miller again heard "drop the knife" repeatedly. Miller Tr. 43-44. The door stopped opening, Miller heard a "pop" and saw a "spark," which he recognized as coming from a taser, and the door slammed shut. Miller Tr. 44.
Miller continued to hear the Officers say "drop the knife" even after Scozzari's cabin door was closed. Miller Tr. 47. When the door reopened, Miller could still see the Chief about ten to fifteen feet from Scozzari's cabin, but Miller could not see Officer McGraw. Miller Tr. 48. At some point, Miller heard another voice say "put your gun down." Miller Tr. 49. Miller could no longer see any light coming from the door and he could not see anyone standing in the doorway. Miller Tr. 50. Then, shots were fired, and Miller saw Scozzari in the threshold of the door with his left arm extended, holding a six to seven inch object in his hand. Miller Tr. 50-52. Miller heard eleven or twelve shots and saw Scozzari fall to the ground. Miller Tr. 53-54. Miller did not see Officer McGraw until after the shooting, when Officer McGraw approached the fallen Scozzari. Miller Tr. 57-58.
Wanetta Gibbons saw some of the events through her cabin door window -- she looked directly west and could see down the sidewalk to Scozzari's cabin. Gibbons Tr. 39. To start, she woke up to hear more than one person yelling more than once, "drop the knife"; she did not hear a taser or other confrontation. Gibbons Tr. 30, 38, 45, 81-82. She looked out her window to see the two Officers with their guns drawn standing in the parking lot directly in front of Scozzari's cabin. Gibbons Tr. 39. Scozzari was on the sidewalk and started to place one foot beyond the wooden barrier on the edge of the sidewalk, with an arm extended in front of him; Gibbons did not see anything in Scozzari's hands. Gibbons Tr. 39-40, 65-66. According to Gibbons, both Officers were standing and about fifteen feet from Scozzari when they backed up and shot Scozzari. Gibbons Tr. 44, 78-79; Pl. Br. Ex. 19. As he was shot, Scozzari's body twisted clockwise halfway back towards his front door. Gibbons Tr. 58.
Jeff Richardson, who stayed in cabin eighteen, was awakened by the sound of "yelling voices and footsteps running past [his] cabin," a cabin door being slammed shut or kicked open, and a taser "going off." Richardson Tr. 13, Jan. 16, 2009. He heard the Officers yelling "put the weapons down," saw the taser on the ground and the Officers with their guns drawn, about twelve to fifteen feet from each other and ten feet from Scozzari's cabin. Richardson Tr. 17, 22, 28. Richardson could not see Scozzari and testified that if Scozzari had stepped very far out from the cabin, he would have been able to see Scozzari because he could see the edge of the sidewalk. Richardson Tr. 17, 34. Both Officers appeared to be nervous and were stepping around in an "antsy" fashion. Richardson Tr. 29. The Officers never left Richardson's view and he never saw Officer McGraw fall down, although he thought that Officer McGraw might have tripped over the wooden barrier at the edge of the sidewalk. Richardson Tr. 50, 55. Richardson testified that McGraw would back up, bring his gun up higher, then relax and step forward. Richardson Tr. 28, 51. Officer McGraw was standing for some time before and when he shot Scozzari. Richardson Tr. 55-56.
Jeff Morgan II, who stayed in cabin nineteen, also witnessed the Chief when he initially entered the motel property, and when Officer McGraw arrived on the scene. Morgan II Tr. 18-20, July 27, 2009. Morgan II saw the Chief carrying a flashlight. Morgan II Tr. 11-13. Eventually, he heard the Officers "booting the door down" of Scozzari's cabin and yelling at Scozzari to come out of the cabin. Morgan II Tr. 20. He did not hear Scozzari say anything. Morgan II Tr. 22. He could see the Officers in front of Scozzari's cabin. Morgan Tr. II 25, 54. He saw Scozzari briefly, as Scozzari was reentering the cabin, and before Officer McGraw deployed his taser. Morgan II Tr. 25, 53. He heard the Officers yelling at Scozzari to drop the weapons before and after Officer McGraw deployed his taser. Morgan Tr. II 28. He saw Officer McGraw deploy his taser. Morgan II Tr. 28.
While Morgan II testified that there were times that he could not see the Chief based on his viewing angle from his cabin door, he testified that Officer McGraw shot first. Morgan II Tr. 34-35, 56. Again, because of the angle, he could not see Scozzari, but he testified that Officer McGraw was about twenty feet from Scozzari's cabin when he shot at Scozzari with his gun, in the same position from where he shot the taser. Morgan II Tr. 35, 55-57. Morgan II never saw Officer McGraw fall down or on the ground and saw him shoot his gun while standing. Morgan II Tr. 57. Ultimately, Morgan II testified that he heard ten or eleven shots, although the Michigan State Police report states that Morgan II reported hearing five or six shots. Morgan II Tr. 31. The testimony of Morgan II's girlfriend, Sheryl Irwin, generally corroborates his testimony, although her testimony was less confident. See, e.g., Irwin Tr. 66, Apr. 3, 2009.
Plaintiff asserts that the analysis of Michigan State Police ballistics technician Reinhart Pope supports the conclusion that Officer McGraw was standing when he shot at Scozzari. Pope testified concerning three bullets and the holes they caused in cabin walls, which are referred to as "A," "B," and "C." Pope testified that the bullet holes and locations of the cartridge cases are consistent with the Chief firing from the southwest and Officer McGraw firing from the southeast at the end of the perpendicular motel building. Pope Tr. 20-21, Oct. 7, 2009.
Bullet A entered the front cabin wall east of the cabin door from the southwest, and was traceable to the Chief. See Pl. Br. Ex. 36 (photograph); Pope Tr. 8, 13-16. Bullets B and C entered the cabin slightly from the southeast and are likely traceable to Officer McGraw. Bullet B entered the cabin east of the cabin door 39.5 inches above the ground and 38.5 inches west of the southeast corner of the cabin. Pope Tr. 14. Bullet C entered the cabin east of the cabin door 10.5 inches above the ground and 52 inches west of the southeast corner of the cabin. Pope Tr. 13, 24; Pl. Br. Ex. 38 (photograph). Pope did not measure the angles at which the bullets entered the cabin, but testified that the bullet holes were "at slight downward angles" and not "upward from the ground up." Pope Tr. 33. Pope further testified that the angles were "consistent with the bullet having been fired by, say, a person standing rather than a person laying on the ground -- because if I had the -- if the shot was in an upward angle, then that would be consistent, you know, with the person maybe laying on the ground shooting up. But because they were, you know, relatively level or slightly downward trajectory, then that's consistent with perhaps the person not laying on the ground." Pope Tr. 69.
After Scozzari fell, the Chief called for a mobile medical response ambulance ("MMR") and requested that it "stage" across the street until the scene could be secured. Pl. Br. Ex. 13. Plaintiff asserts that it was two minutes and thirty-seven seconds from the time the shooting was reported (11:26:09) to the time that the request for medical assistance was made (11:28:46). See Pl. Br. Ex. 1, 26. While the medical team arrived at the scene promptly, it was not able to render medical assistance until 11:38. See Pl. Br. Ex. 1, 26. Testimony from the emergency medical technicians suggest that it is common for medical personnel to wait to approach a patient until the scene is cleared for safety. See Kunik Tr. 34; W. Bryans Tr. 7-8; C. Bryans Tr. 5-6. The medical team took Scozzari to the hospital at 11:56. Pl. Br. Ex. 26.
Both Officers reported that the knife and the hatchet were still "gripped" in Scozzari's hands after he fell and they yelled for Scozzari to drop the knives. Pl. Br. Ex. 13. The Officers reported that the Chief directed Officer McGraw to remove the weapons from Scozzari's hands while the Chief covered Officer McGraw with his gun drawn. Pl. Br. Ex. 13; McGraw Tr. 162. First, however, the Chief directed that they wait a minute to make sure that Scozzari was not faking it. McGraw Tr. 158, 162-65.
When Officer McGraw approached the fallen Scozzari, he saw Scozzari's body shaking and heard gurgling sounds coming from his mouth. Pl. Br. Ex. 13; McGraw Tr. 157, 162. Officer McGraw stepped on each of Scozzari's wrists as he removed each knife and tossed them to the west. Pl. Br. Ex. 13; Chief Tr. 111. Officer McGraw reported finding three other knives in Scozzari's waistband or nearby, which he tossed to the same place. Pl. Br. Ex. 13. Officer McGraw then unsuccessfully checked for Scozzari's pulse, flipped Scozzari over onto his back, checked unsuccessfully for a pulse again, then handcuffed Scozzari's hands in front of him. Pl. Br. Ex. 13; Chief Tr. 111. Meanwhile, the Chief called MMR onto the scene and paramedics Carl Bryans, Winnie Bryans, Nate Kunik, and Stacy Salminen took over. Pl. Br. Ex. 13.
After the shots were fired, Jeff Morgan Sr. and his minor son, J.M., went out onto the second floor balcony of their motel room. J.M. saw Officer McGraw standing over Scozzari, shouting "drop the knives," although J.M. did not see any weapons. J.M. Tr. 15, July 27, 2009. J.M. saw an Officer enter Scozzari's cabin, and then place a hatchet and knife by the police car about twenty feet from the door to Scozzari's cabin. J.M. Tr. 15. Jeff Morgan Sr. saw an Officer enter the cabin and come out with two objects that he put on the sidewalk past Scozzari's body. Morgan Sr. Tr. 125, July 27, 2009. Jeff Morgan Sr. and J.M. returned to their room for a moment and when they returned to the balcony, the knife and the hatchet were near Scozzari. J.M. Tr. 16.
McGraw reported that when people came out of nearby cabins, the Chief asked a few of them to come over and witness the knives in Scozzari's hands. Pl. Br. Ex. 13. The Chief testified that he did not recall approaching any guests of the motel cabins and asking them to come out and observe Scozzari's body or the positioning of the weapons. Chief Tr. 111. Richardson testified that one of the Officers "started banging on doors," and asked him to witness the weapons, while Scozzari was still breathing. Richardson Tr. 35. Officer ...